STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE PARK COUNTRY CLUB )

)

Petitioner, )

)

vs. ) CASE NO. 93-0552VR

)

CLAY COUNTY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 2, 1993, in Green Cove Springs, Florida.

APPEARANCES

For Petitioner: Thomas M. Jenks, Esquire

Sharon R. Parks, Esquire Pappas & Metcalf, P.S.

3301 Independent Square

Jacksonville, Florida 32202

For Respondent: Mark Scruby

Clay County Attorney Post Office Box 1366

Green Cove Springs, Florida 32043 STATEMENT OF THE ISSUE

Whether the Petitioner, Country Club of Orange Park Partnership, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that it has a vested right to undertake development of certain real property located in Clay County notwithstanding the fact that the development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?

PRELIMINARY STATEMENT

On or about January 15, 1993, an Application for Vested Property Certification for Claims of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County 1991-2001 Comprehensive Plan, (hereinafter referred to as the "Application"), was filed by M. Lynn Pappas, Esquire, and Sharon R. Parks, Esquire, on behalf of the Country Club of Orange Park Partnership (hereinafter referred to as the "Applicant"), with the Clay County Department of Planning and Zoning. Documentation in support of the Application was also filed. On or about January 27, 1993, Clay County referred the Application and the supporting documentation to the Division of Administrative Hearings for assignment of a Hearing Officer.

Pursuant to an agreement of the parties, a hearing was held on March 2, 1993, to give the Applicant an opportunity to offer the Application and supporting documentation into evidence and to supplement the record with additional evidence. The hearing was also held to give the Respondent, Clay County, an opportunity to be heard. Finally, the hearing was held to give the undersigned an opportunity to ask questions concerning the Application and supporting evidence.

The hearing was conducted in accordance with the Vested Rights Review Process of Clay County, Florida, as adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22. At the commencement of the hearing the Application and documentation filed with the Application were accepted into evidence. A Vested Property Certificate issued by Clay County on a related parcel of property was also accepted into evidence. Susan D. Wood testified on behalf of the Applicant.

Counsel for the Applicant filed a proposed final order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

Clay County did not file a proposed final order.

FINDINGS OF FACT

1. The Subject Property.

   
   

   1. The Applicant is the owner of approximately 799.58 acres of land (hereinafter referred to as the "Country Club Property"), located on Loch Rane Boulevard, Clay County, Florida.

      
      

   2. In the early part of 1987, the Applicant applied to rezone the Country Club Property as a planned unit development district (hereinafter referred to as a "PUD").

      
      

   3. The Country Club Property is to be developed in phases. At issue in this proceeding is that portion of the Country Club Property other than Unit One, which consists of lots 1 through 295.

      
      

2. Development of the Property; Government Action Relied Upon by the Applicant.

   
   

   1. Prior to approving the rezoning of the Country Club Property requested in the early part of 1987, Clay County advised the Applicant that it would be required to commit to resignalize and expand the Loch Rane/Blanding Boulevards interchange as a condition to Clay County approving the rezoning of the Country Club Property as a PUD.

      
      

   2. Clay County approved the requested rezoning of, and the master land use plan for, the Country Club Property on March 24, 1987. The master land use plan specifies that the Country Club Property will include development of the following: (a) up to 599 single-family dwelling units within the residential portion; (b) ten acres of commercial uses, including retail shops, a day-care center and a restaurant; (c) a sales center; and (d) a golf course and club facilities.

   3. Engineering plans for phase one of the proposed development were submitted to Clay County in 1987. As part of the engineering plans, the Applicant obtained permits from the Army Corps of Engineers, the St. Johns' River Water Management District and the Florida Department of Environmental Regulation.

      
      

   4. The plat for phase one of the Country Club Property was submitted to Clay County and on May 12, 1987, Clay County approved the final plat for phase one.

      
      

   5. In April, 1989, the Applicant applied for building permits for construction of the golf course clubhouse, pool facilities and the golf cart storage barn. Permits for these facilities were issued by Clay County in October, 1989.

      
      

   6. In 1991, engineering plans for phase two of the Country Club Property were submitted to Clay County. They were approved effective January 1, 1992.

      
      

   7. On February 12, 1993, Clay County issued a Vested Property Certificate for phase one of the development, Lots 1 through 295 of Unit One, pursuant to Section 20.8-6 of the Vested Rights Review Ordinance of Clay County, Florida.

      
      

3. The Applicant's Detrimental Reliance.

   
   

   1. In reliance on Clay County's actions in approving the PUD rezoning and accompanying master plan and the engineering plans for phase one and phase two, the Applicant constructed master infrastructure improvements for the project. Improvements have included drainage, water and sewer systems, a master road system designed and sized to serve the entire development at a cost of approximately $4,972,670.00. These improvements were made between November, 1988 and April, 1990.

      
      

   2. The Applicant has also constructed the entry features for the Country Club Property, master recreational facilities, including an eighteen-hole golf course, golf course clubhouse, pool and tennis facilities and a sales center. Total costs of these improvements were approximately $7,224,917.00. These improvements were made between November, 1988 and April, 1990.

      
      

   3. Finally, the Applicant has resignalized and expanded the Loch Rane/Blanding Boulevards interchange. The cost of these improvements was approximately $72,000.00. These improvements were made between October, 1991 and January, 1992.

      
      

4. Rights That Will Be Destroyed.

   
   

   1. Pursuant to the Clay County 2001 Comprehensive Plan, the portion of Blanding Boulevard impacted by the Country Club Property development does not have sufficient capacity to develop the property as proposed. To comply with the comprehensive plan will require considerable delays in completion of the project which will result in a substantial adverse financial impact on the Applicants.

      
      

5. Procedural Requirements.

1. The parties stipulated that the procedural requirements of the Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

2. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1991), and Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22.

   
   

   1. General Requirements of Article VIII of the Code.

      
      

3. Pursuant to Section 163.3167, Florida Statutes, Clay County was required to prepare a comprehensive plan governing the use and development of land located within Clay County. In compliance with Section 163.3167, Florida Statutes, Clay County adopted a comprehensive plan by Ordinance 92-03 on January 23, 1992 (hereinafter referred to as the "2001 Comprehensive Plan).

   
   

4. In order to insure that existing rights to develop property of Clay County property owners created by the Constitutions of the State of Florida and the United States, are not infringed upon by application of the 2001 Comprehensive Plan, Clay County promulgated Article VIII of the Clay County Land Development Code (hereinafter referred to as the "Code"). The intent of Clay County in adopting Article VIII of the Code is included in Section 20.8-3(b):

   
   

   1. It is the intent of this Article to provide the standards and administrative procedures for determining whether a person has a vested right to undertake development activities, notwithstanding the fact that all or part of the development is not in accordance with the requirements of the Clay County 2001 Comprehensive Plan or land development regulations.

      
      

5. There are two general types of circumstances pursuant to which vested rights to develop property may be found under Article VIII of the Code: (1) "statutory vested rights" pursuant to Section 20.8-6 of Article VIII of the Code; and (2) "equitable vested rights" pursuant to Section 20.8-7 of Article VIII of the Code.

   
   

6. Applications to determine if development rights are vested are initially reviewed for technical correctness by the Clay County Planning and Zoning Department (hereinafter referred to as the "Planning Department"). Section 20.8-8(c)(1) and (d)(1) of Article VIII of the Code.

   
   

7. Once an application is accepted, the Director of the Planning Department makes an initial determination whether development rights in the property are vested if the application is based upon statutory vesting. Section 20.8-8(c) of Article VIII of the Code. If the Director's decision is adverse to the applicant, the applicant may appeal the Director's decision. Section 20- 8.08(c)(5) of Article VIII of the Code.

   
   

8. In the case of an application for equitable vesting no determination on the merits is made by Clay County. The Director of the Planning Department, after determining that an application for equitable vesting is complete, is required to coordinate a hearing to consider the application. Section 20.8-

   8(d)(3) of Article VIII of the Code. Hearings on equitable vesting applications are to be held within 60 days after the Director of the Planning Department determines that the application is complete. Id.

   
   

9. Pursuant to a contract entered into between Clay County and the Division of Administrative Hearings, Hearing Officers of the Division of Administrative Hearings may be authorized by Clay County to conduct hearings to consider appeals on applications of statutory vesting and to make the initial decision on applications for equitable vesting. Section 20.8-9(b) of Article VIII of the Code.

   
   

10. The manner in which hearings are to be conducted is governed by Section 20.8-10 of Article VIII of the Code. At the conclusion of a hearing, the Hearing Officer is required to issue a written decision approving, denying or approving with conditions the application. Section 20.8-10(a)(4) of Article VIII of the Code.

    
    

    1. Equitable Vested Rights.

       
       

11. Section 20.8-7 of Article VIII of the Code governs the determination of whether an applicant's development rights in property have vested pursuant to the equitable vested rights definition of Article VIII of the Code. The criteria for determining whether property is equitably vested are as follows:

    
    

    1. Criteria For Determining Equitable Vested Rights. Developments shall be deemed to have Equitable Vested Rights pursuant to this Section if it is shown by substantial competent evidence that a property owner or other similarly situated person:

       1. has acted in good faith and in reasonable reliance;

       2. upon a valid, unexpired act or omission of the government, and

       3. has made such a substantial change in position or incurred such extensive obligations and expenses that it would be inequitable or unjust to destroy the rights such person has acquired.

          
          

          Section 20.8-7(b) of Article VIII of the Code.

          
          

          1. County Club of Orange Park Partnership's Application.

          
          

12. Equitable vesting under Article VIII of the Code contains the same elements of proof required for the doctrine of equitable estoppel to apply. The doctrine of equitable estoppel has been described as follows:

    
    

    The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1) relying in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.

    Smith v. Clearwater, 383 So.2d 681, 686 (Fla. 2d DCA 1980). See also, Key West

    v. R.L.J.S. Corporation, 537 So.2d 641 (Fla. 3d DCA 1989); and Harbor Course Club, Inc. v. Department of Community Affairs, 510 So.2d 915 (Fla. 3d DCA 1987). The undersigned has been guided in this case by the case law applying the doctrine of equitable estoppel. See Section 20-8.10(a)(5) of Article VIII of the Code.

    
    

13. The Applicant has argued that it has proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Article VIII of the Code, exist in this case. The Applicant has suggested several governmental actions in its proposed final order which it relied upon:

    
    

    1. Approval by Clay County of the PUD zoning and the accompanying master plan;

       
       

    2. Approval by Clay County of the Phase I engineering plans;

       
       

    3. Approval by Clay County of the Phase II engineering plans;

       
       

    4. Approval by Clay County of the plat of Orange Park Country Club Unit

       One;

       
       

    5. Issuance by Clay County of building permits for the golf course

       clubhouse, pool and golf cart barn; and

       
       

    6. Clay County's requirement for resignalization at, and expansion of, the interchange at Loch Rane and Blanding Boulevards.

    
    

14. Zoning is not, by itself, sufficient to constitute the type of government action which will support a finding of equitable estoppel. The Clay County ordinances adopting Article VIII of the Code recognize that "existing zoning does not create any specific rights to development densities or intensities under the Plan." The evidence in this case does, however, support consideration of the zoning of the Country Club Property with the other actions of Clay County. When all of the actions of Clay County described in paragraph

    27 are considered, Clay County has taken actions upon which the Applicant could reasonably rely in proceeding to develop the Country Club Property.

    
    

15. Based upon the foregoing, it is concluded that, in light of the actions of Clay County taken with the Applicant, the first two criteria for equitable vesting have been proved: the Applicant acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of the government.

    
    

16. The changes in position or obligations and expenses that the Applicant has incurred in reliance upon Clay County's actions include proceeding to obtain permits necessary for the development of the property, completion of engineering plans, and the expenditure of significant funds in furtherance of the development the Country Club Property. The Applicant has incurred expenses in excess of $12,500,00.00 in reliance on Clay County's actions.

    
    

17. Finally, the evidence proved that the Applicant will likely not be able to develop the Country Club Property as previously approved by Clay County if required to comply with the Clay County 2001 Comprehensive Plan.

18. In light of the expenditures of the Applicant and the adverse impact of complying with the Clay County 2001 Comprehensive Plan, it is concluded that the third criterion for equitable vesting has also been proved: the Applicant has made a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable or unjust to destroy the rights the Applicant has acquired.

    
    

19. Based upon a review of the evidence presented at the hearing held before the undersigned on March 2, 1993, it is concluded that the Applicant has proved that the elements of equitable vesting apply to the Country Club Property, except that portion of the property for which a Vested Property Certificate has already been issued by Clay County.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Application for Vested Property Certification for Claims

of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County

1991-2001 Comprehensive Plan dated November 16, 1992 and filed on behalf of Country Club of Orange Park Partnership is APPROVED. A Type 4 Vested Property Certificate should be issued to the Applicant for the Country Club Property, except that portion of the property for which a Vested Property Certificate has already been issued by Clay County.

DONE and ORDERED this 6th day of April, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1993.

APPENDIX

The Applicant has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Clay County did not file a proposed final order.

The Applicant's Proposed Findings of Fact

1. Accepted in 1-2.

2. Accepted in 4.

3. Accepted in 5.

4. Accepted in 6.

5. Accepted in 7.

6. Accepted in 8.

7. Hereby accepted.

8. Accepted in 9.

9. Accepted in 10.

10. Accepted in 11.

11. Accepted in 12.

12. Accepted in 13.

13. Accepted in 14.

14. Accepted in 15.

Phil Leary, Director

Planning Zoning and Code Enforcement Clay County

Post Office Box 367

Green Cove Springs, Florida 32043-0367

Dale Wilson, Chairman

Board of County Commissioners Post Office Box 1366

Green Cove Springs, Florida 32043

Judicial review of the decision is available to the parties by common law certiorari to the Circuit Court of the Fourth Judicial Circuit.

Docket for Case No: 93-000552VR

Orders for Case No: 93-000552VR